Update on Use of Acquitted Conduct to Enhance Guidelines Calculations (1/19/23)

Today, I alert readers of potential action on the Sentencing Guidelines' use of acquitted conduct as "relevant conduct" to increase the sentencing offense level and incarceration range. Technically, all the acquittal meant was that the Government had not proved guilt beyond a reasonable doubt. However, the Government could theoretically still prove, either on the trial record or perhaps with new evidence at the sentencing hearing, that the guilty conduct was proved by a preponderance of the evidence (the standard at sentencing) and could even use otherwise inadmissible evidence (e.g., hearsay) in determining preponderance.

1. The Supreme Court may consider the issue of whether use of acquitted conduct in sentencing is constitutional. See John Elwood, Acquitted-conduct sentencing and "offended observer" standing (SCOTUSblog Relist Watch 1/19/23), here. In this article, the author advises

a. The Supreme Court has relisted five cases involving “the controversial practice of sentencing criminal defendants based on offenses that juries acquitted them of.” (For links discussing the Supreme Court practice of relisting and inferences/speculations from relisting, see citations and links in paragraph 4 of my comments below.)

b. A divided Supreme Court had approved the use of acquitted conduct in United States v. Watts, 519 U.S. 148 (1997). Based on Watts, “essentially every federal court of appeals and many state courts have read the opinion to have conclusively resolved the constitutionality of acquitted-conduct sentencing.”

c. The relisted petitions “argue that Watts should be overruled or limited and that the due process clause of the Fifth Amendment and the jury-trial guarantee of the Sixth Amendment prohibit imposing sentencing enhancements on criminal defendants based on conduct of which the jury acquitted them.”

2. On January 12. 2023, the US Sentencing Commission released proposed amendment limiting the use of acquitted conduct to enhance sentences. See USSC, Proposed Amendments to the Sentencing Guidelines (Preliminary) (1/12/23), here. 

a. The synopsis of the proposed amendment here (p. 215-216) offers a nice summary of the state of the law and Guidelines and briskly describes the proposed amendment:

The proposed amendment would amend §1B1.3 to add a new subsection (c) providing that acquitted conduct shall not be considered relevant conduct for purposes of determining the guideline range unless the conduct was admitted by the defendant during a guilty plea colloquy or was found by the trier of fact beyond a reasonable doubt to establish, in whole or in part, the instant offense of conviction. The new provision would define “acquitted conduct” as conduct underlying a charge of which the defendant has been acquitted by the trier of fact or upon a motion of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure or an analogous motion under the applicable law of a state, local, or tribal jurisdiction.

b. The proposed language of the amendment to §1B1.3. Relevant Conduct (Factors that Determine the Guideline Range) is (pp. 216-217 of the pdf here):

(c) ACQUITTED CONDUCT.—

(1) LIMITATION.—Acquitted conduct shall not be considered relevant conduct for purposes of determining the guideline range unless such conduct—

(A) was admitted by the defendant during a guilty plea colloquy; or

(B) was found by the trier of fact beyond a reasonable doubt; to establish, in whole or in part, the instant offense of conviction.

(2) DEFINITION OF ACQUITTED CONDUCT.—For purposes of this guideline, “acquitted conduct” means conduct (i.e., any acts or omission) underlying a charge of which the defendant has been acquitted by the trier of fact or upon a motion of acquittal pursuant to Rule 29 of the Federal Rules of Criminal  Procedure or an analogous motion under the applicable law of a state, local, or tribal jurisdiction.

c. For the proposed changes to the Commentaries (with redline and strikeouts) for §6A1.3. Resolution of Disputed Factors (Policy Statement), see starting pdf p. 227 here.  The key part of the discussion is on pdf pp. 227-228 as follows:

The Commission believes that use of a preponderance of the evidence standard is appropriate to meet due process requirements and policy concerns in resolving disputes regarding application of the guidelines to the facts of a case. Acquitted conduct, however, generally shall not be considered relevant conduct for purposes of determining the guideline range. See subsection (c) of §1B1.3 (Relevant Conduct). Acquitted conduct may be considered in determining the sentence to impose within the guideline range, or whether a departure from the guidelines is warranted. See §1B1.4 (Information to be Used in Imposing a Sentence (Selecting a Point Within the Guideline Range or Departing from the Guidelines)). 

d. The Issue for Comment (pdf p. 228) is:

1. The proposed amendment is intended to generally prohibit the use of acquitted conduct for purposes of determining the guideline range, except when such conduct was admitted by the defendant during a guilty plea colloquy or was found by the trier of fact beyond a reasonable doubt to establish the instant offense of conviction. However, conduct underlying an acquitted charge may overlap with conduct found by the trier of fact beyond a reasonable doubt to establish the instant offense of conviction. Does this proposed amendment allow a court to consider such “overlapping” conduct for purposes of determining the guideline range? Should the Commission provide additional guidance to address this conduct?

2. The Commission seeks comment on whether the limitation on the use of acquitted conduct is too broad or too narrow. If so, how? For example, should the Commission account for acquittals for reasons such as jurisdiction, venue, or statute of limitations, that are otherwise unrelated to the substantive evidence?

JAT Comments:

I first offer my comments on the Guidelines' proposal and then, at the end, offer some links for understanding Supreme Court petition relisting in reading the tea leaves. All comments are presented in numerical order.

1. Admissions in a plea agreement for uncharged crimes are not acquitted conduct. These seem to not fall under the category of acquitted conduct, but such admissions would show guilt of the crime either under a preponderance or beyond a reasonable doubt. Such admissions might be a fair proxy for acquittal.

2. Although I have not read deeply on the proposal, I have some concerns about permitting acquitted conduct found by the "trier of fact" beyond a reasonable doubt. If the jury acquitted, it did not find guilt beyond a reasonable doubt. If "trier of fact" refers to the jury or even the judge in the guilt determination trial, then acquitted conduct cannot be considered. If, however,  the "trier of fact" is referring to the judge at sentencing after the jury or even the judge has acquitted on the relevant counts, then this makes no sense to me. Another question, can the sentencing judge consider evidence that was not and could not be admitted in the guilt determination phase to find guilt of the acquitted conduct beyond a reasonable doubt as relevant conduct for Guidelines' calculations.  I'll have to think about it further.

3. I don't think that even approval of the Proposed Sentencing Guidelines Amendments would resolve all of the constitutional issues raised in the relisted petitions for writ of certiorari since the amendments seem to contemplate that some acquitted conduct might be used for sentencing.

4. On Supreme Court relisting (reading the tea leaves), here are some of better links I found on a quick search:

• Supreme Court Adds Layer of Due Diligence: Relists Explained (bloomberglaw.com 1/4/21), here.
• Amy Howe, Frequently asked questions: Orders (SCOTUSblog 1/24/13), here, describing relisting:

Question:  What does it mean for the Court to relist a case?

Answer:  When a case is “relisted,” that means that it is set for reconsideration at the Justices’ next Conference.  Unlike a hold, this will show up on the case’s electronic docket.  A relist can mean several things, including the fairly straightforward prospect that one or more Justices wants to take a closer look at the case; that one or more Justices is trying to pick up enough votes to grant review (four are needed); that the Justices are writing a summary reversal (that is, a decision that the lower court opinion was so wrong that the Court can decide the case on the merits without briefing or oral argument); or that one or more Justices are writing a dissent from the decision to deny review.